The National Center for Missing & Exploited Children reports that there are roughly 747,000 registered sex offenders in the United States. The Parents for Megan’s Law says that more than 46,000 of these offenders are registered in Texas.
Over the last decade, a consensus developed among child sexual abuse experts that registered sex offenders should not have access to the Internet or the social media sites it makes available to the general public. The underlying premise of this opinion is that sexual predators can use these social media to attract and ensnare unsuspecting children into their grasp.
This opinion ultimately filtered its way into both state and federal court systems. Internet restrictions and/or prohibition became a fixture of state probation and parole releases—and in many cases even as standard conditions of release on bail. The U.S. Probation and Pretrial Services Center established a Computer and Internet Monitoring Program (“CIMP”) that recommends, “as a standard sex offender condition,” restrictions and/or prohibitions on the use of the Internet and Internet-capable devices for sex offenders under supervised release.
North Carolina Law Criminalized Access to Social Media
In 2008, North Carolina, which has roughly 10,000 registered sex offenders, passed a law that made it a felony for any registered sex offender “to access a commercial Web site where the sex offender knows that the site permits minor children to become members or to create or to maintain personal Web pages.”
North Carolina prosecutors obtained more than 1,000 convictions of sex offenders under this statute before the U.S. Supreme Court on June 19, 2017, in Packingham v. North Carolina, struck down the law as placing unnecessary restrictions on the First Amendment to the U.S. Constitution.
Justice Kennedy Argues Internet May Aid in Rehabilitation
In a rare 8-0 unanimous decision, Justice Kennedy, who delivered the court’s opinion, expressed this conclusion about the North Carolina law:
“In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals – and in some instances especially convicted criminals – might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”
Lifetime Bans Unreasonable, Restrictions Must be Narrowly Tailored
Since as early as 2003, the federal circuit courts have taken a dim view of federal district courts imposing lifetime bans on computer and/or Internet access. The First, Third and Seventh Circuits led the way in striking down unreasonable conditions of supervised release restricting Internet access. In 2013, the Sixth Circuit remanded a case involving Internet restriction, finding that “in 20 years, actually holding a job will in all likelihood require usage of … Internet-based technology.”
Two years later, on the same day (June 5), the Fifth and Tenth Circuits handed down decisions that specifically said lifetime bans on Internet access is unconstitutional. The Fifth Circuit said that “… it is hard to imagine that such a sweeping, lifetime ban could ever satisfy § 3583(d)’s requirement that a condition be narrowly tailored to avoid imposing a serious deprivation than reasonably necessary. Indeed, an unconditional, lifetime ban is ‘the antithesis of a narrowly tailored sanction.’”
Absolute Restrictions Prevent Meaningful Access to Participate in Modern Society
All these federal circuits have examined Internet restrictions and/or prohibitions thoroughly and have concluded, as the Fifth Circuit stated, that “absolute computer and Internet ban[s]” preclude registered sex offenders from being able to “meaningfully” participate “in modern society for the rest of his life.” Such absolute bans, especially those for a lifetime, do not allow the registered sex offender to pay his or his taxes online, seek government information, conduct any kind of commerce (such as ordering tennis shoes from Amazon), to pursue online educational opportunities, or to even email family or friends.
The Supreme Court in Packingham offered this advice to all courts: “The Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow.”
These federal circuit decisions, and especially the Supreme Court’s Packingham decision, should inform all state and federal trial courts to apply extreme caution, as well as restraint, before imposing computer and Internet restrictions and/or prohibitions on sex offenders either at the pretrial or post-trial level.